## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 3 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PASCAL D. PIERCE,

Plaintiff-Appellant,

v. SHORTY SMALL’S OF BRANSON INC.,

Defendant-Appellee. No. 97-6001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 95-CV-2010)

Submitted on the briefs: M. Michael Arnett, Oklahoma City, Oklahoma, for Pla intiff-Appellant. Rick E. Temple, King & Temple, Springfield, Missour i, for Defendant-Appellee.

Before BRORBY , BARRETT , and BRISCOE , Circuit Judges.

BRISCOE , Circuit Judge.* After examining the briefs and appellate record, th is panel has

determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. -2- Plaintiff-Appellant Pascal D. Pierce appeals from the district court’s order dismissing his complaint for improper venue. We af firm. * Plaintiff brought this action in the Western Distri ct of Oklahoma, alleging he was sexually harassed and subjected to a hostile work environment while working at one of defendant’s restaurants in Missou ri. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e throug h 2000e-17. Defendant filed a motion to dismiss, contending venue was not prope r in the Western District of Oklahoma. The district court agreed, and dismissedthe action for improper

venue.Title VII contains its own venue provision. See 42 U.S.C. § 2000e-5(f)(3). It has long been settled in this circuit that this provision, rather than the general venue statute, governs venue in Title VII actions. See Ford v. Valmac Indus., Inc. , 494 F.2d 330, 332 (10th Cir. 1974). Section 2000 e-5(f)(3) reads in pertinent part as follows: Such an action may be brought in any judicial distr ict in the State in which the unlawful employment practice is allege d to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and admini stered, or in the judicial district in which the aggrieved person wou ld have worked but for the alleged unlawful employment practice, b ut if the-3-

respondent is not found within any such district, s uch an action may be brought within the judicial district in which th e respondent has his principal office. This circuit has not specifically addressed the sco pe of review we employ when reviewing a district court’s order dismissing a complaint for improper venue under 42 U.S.C. § 2000e-5(f)(3). Whether the distr ict court erred in dismissing for improper venue frequently arises with the relat ed question of whether the district court also erred in failing to transfer th e action to a proper venue pursuant to 28 U.S.C. § 1406(a), rather than dismiss. Court s that have addressed this issue have concluded the decision of whether to dismiss o r transfer lies within the sound discretion of the district court. See Minnette v. Time Warner , 997 F.2d 1023, 1026 (2d Cir. 1993); Johnson v. Payless Drug Stores Northwest, Inc. , 950 F.2d 586, 588 (9th Cir. 1991). Here, plaintiff has not alleged the district court erred in dismissing his action instead of transferr ing it to a proper venue. Rather, plaintiff argues he satisfied the statutory require ments of § 2000e-5(f)(3), but the district court misinterpreted the statute. The dis trict court’s determination of where the action may be brought involves an interpr etation of the venue statute and is, therefore, a question of law subject to de novo review. See Hooker v. United States Dep’t of Health & Human Servs., 858 F.2d 525, 528 n.2 (9th Cir. 1988) (district court’s interpretation of venue statute in diversity case reviewed de novo); compare withBruns v. National Credit Union Admin. , 122 F.3d 1251,-4-

1253 (9th Cir. 1997) (district court’s decision to dismiss action for improper venue reviewed for abuse of discretion). In support of its motion to dismiss, defendant file d an affidavit containing facts from which it may be concluded that (1) the a lleged Title VII violation occurred in Missouri; (2) plaintiff’s employment re cords were prepared and maintained in that state; (3) Missouri is where the plaintiff would have worked but for the asserted unlawful employment practice; and (4) the restaurant’s principal office is in Missouri. Plaintiff failed to present any evidence in respons e to defendant’s affidavit. Plaintiff contends that in responding to a motion t o dismiss for improper venue, he was entitled to rely upon the well pled facts of his complaint. This is true, however, only to the extent that such facts are unc ontroverted by defendant’s affidavit. See Home Ins. Co. v. Thomas Indus., Inc. , 896 F.2d 1352, 1355 (11th Cir. 1990); cf. Williams v. Bowman Livestock Equip. Co. , 927 F.2d 1128, 1130 (10th Cir. 1991) (stating rule in context of p ersonal jurisdiction). Defendant’s affidavit controverted each of the statutory bases for jurisdiction pled in plaintiff’s complaint. Plaintiff argues the affidavit is insufficient beca use it does not positively state no records of his employment were maintained or administered in Oklahoma. Plaintiff’s argument ignores the wording of the aff idavit. It states that “[t]he-5-

employment records of Shorty Small’s of Branson rel ating to [plaintiff]’s employment were prepared and maintained in the Stat e of Missouri.” Appellant’s App. at 17. The affidavit’s inclusive language con troverts the assertion that some records were maintained in Oklahoma. Plaintiff contends there is a significant distincti on between the phrase “prepared and maintained,” used in the affidavit, a nd “maintained and administered,” used in his complaint. This distinc tion is not significant. To establish venue under § 2000e-5(f)(3), plaintiff ha d to show the records were both maintained andadministered in the Western District of Oklahoma. Defendant’s affidavit controverts plaintiff’s claim that the re cords were “maintained” in Oklahoma. That was sufficient contravention to def eat the venue allegation in plaintiff’s complaint. Finally, plaintiff argues the district court erred in failing to consider the two letters he submitted from the headquarters of amanagement company in Oklahoma. Plaintiff contends these letters establi sh venue in the Western District of Oklahoma. We review a district court’s decisionto consider particular evidence for abuse of discretion. Sports Racing Se rvs., Inc. v. Sports Car Club of Am., Inc. , 131 F.3d 874, 894 (10th Cir. 1997). The letters were not submitted in connection with d efendant’s motion to dismiss on the venue issue. Instead, they were att ached to a previous, unrelated-6-

motion to dismiss an earlier complaint, which was d ecided several months before the district court considered the venue issue. Pla intiff made no argument before the district court that the letters supported his p osition on the venue issue. Instead, he makes this argument for the first time on appeal. We do not consider arguments which are raised for the first time on ap peal. See Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 720-21 (10th Cir. 1993). We conclu de that, based on the evidence before it, the district court acted within its discretion in disregarding the letters and dismissing plaintiff’s complaint for improper venue. Plaintiff also argues the district court erred in s triking his sur-reply to the motion to dismiss and in refusing to consider his m otion for reconsideration of the order striking his sur-reply. Both of these pleadi ngs were filed after the district court’s order of dismissal. Plaintiff’s notice of appeal designated only the dismissal order as the order appealed. “Our ap pellate review is limited to final judgments or parts thereof that are designate d in the notice of appeal.” Cunico v. Pueblo School Dist. No. 60 , 917 F.2d 431, 444 (10th Cir. 1990);

see generallyFed. R. App. P. 3(c). Further, the order denying consideration of the motion for reconsideration was entered after pl aintiff filed his notice of appeal. Plaintiff should have filed an amended not ice of appeal if he wanted us to consider this order. See Fed. R. App. P. 4(a)(4). AFFIRMED.